Rupert Murdoch and Phone-Hacking in California

Certainly one of the biggest news items at the moment is the ongoing controversy regarding the “news-gathering” activities of those associated with the News of the World, a tabloid newspaper owned by Rupert Murdoch’s News Corporation. Employees working for News of the World have been accused of hacking into the phones of individuals with sensitive information, including victims of the 7/7 London Bombing, as well as other unsavory behavior.

How illegal would these activities be in California? Well, the answer is “pretty illegal”, both from a criminal and civil perspective. Phone hacking is defined as the practice of intercepting telephone calls or voicemail messages, without the other party’s consent. Using technological devices to “hack” into another person’s private information is generally unlawful in the United States unless carried out as a lawful interception by a government agency.

In California, phone-hacking and other eavesdropping methods are prohibited by the “Invasion of Privacy Act”, which is contained in various California Penal Code statutes. The Act was created due to an acknowledgement of the growing presence of advanced telecommunications equipment, and the availability of devices by which to intercept and record electronic communications. Violations of the Act can lead to imprisonment and fines. Separately, the Invasion of Privacy Act also provides for a civil action against any person who has engaged in phone-hacking or other electronic eavesdropping. A successful civil claim provides for the greater of $5,000 in damages, or the “actual damages” suffered by the aggrieved person. Additional damages may be available if the communication was not only intercepted, but also disclosed to third parties. Further rights and damages may be found under Federal Law, specifically the Omnibus Crime Control Act.

A related question that we occasionally find clients asking is “can I tape-record someone I speak to on the telephone?” ala Mel Gibson’s ex-girlfriend Oksana Grigorieva. Generally the answer is “no”. In California, it is unlawful to tape-record a telephone conversation without the other person’s consent. It is also a crime; violations can lead to imprisonment and fines up to $10,000. However, there are certain exceptions to this rule. For example, victims of domestic violence can sometimes obtain court orders allowing telephone calls to be recorded without the other party’s consent.

Communication technology is advancing at an amazing rate, barring the complaints we all have about the occasional dropped cell call. Moreover, the internet is filled with offers for electronic gadgets we used to think were only available for spies. However, before one thinks about engaging in some covert eavesdropping, they should think long and hard about the possible penalties for doing so. News of the World would have been well advised to follow this advice.

Corey: yes, the government can generally do those things under the Patriot Act. Specifically, the Act provides for various “enhanced surveillance procedures”, and has expanded the scope of law enforcement wirtapping and surveillance orders. The Act provides that any district judge in the US has power to issue such surveillance orders for “terrorism investigations.” However, the orders can be issued against US citizens. Various provisions of the Act, including “sneek and peak” search warrants, have been struck down by courts. However, Congress has generally amended the laws where possible to permit these actions. The Act is incredibly long, and complex, and the specifics of how these surveillance procedures operate (or should operate) could fill a book. Derek Decker.

Yes, the government can generally take these actions under the Patriot Act. Specifically, the Act allows for “enhanced surveillance procedures” including wiretaps and “sneak and peek” warrants. Generally, the scope and availability of wiretaps and surveillance is expanded under the Act. It allows any District Court judge to issue surveillance orders and warrants for “terrorism investigations,” although the procedures can expressly be used against citizens of the U.S. The requirement (or non-requirement) of a warrant or a different surveillance order depends on the procedure being used. For example, under the Act the FBI can access stored voicemails through a searchwarrant, rather than under the more stringent wire-tapping laws applicable to law enforcement efforts where the Act does not apply.